Appeals Court Victory for TCRP Prisoners’ Rights Program

For much of the summer of 2008, temperatures in Beeville, Tex., soared above 90 degrees. For almost two weeks, the heat index was 130 degrees or higher, in what scientists consider the “extreme danger” range, when the risk of heat stroke is imminent.

The heat was stultifying inside the C-8 dormitory of the Texas state prison in Beeville, which housed 54 men. The unit did not have any air-conditioning and the windows were sealed tight. Eugene Blackmon, an inmate, then about 63 years old with high blood pressure, said that the warden and others also turned on the unit’s heaters — and then failed to respond to numerous grievances he filed about the heat and its terrible effects on his health.

Last week, a three-judge panel of the United States Court of Appeals for the Fifth Circuit convincingly ruled that Mr. Blackmon could sue the warden and his team for endangering his health and violating constitutional protections against cruel and unusual punishment. The Supreme Court has long said that while the Constitution “does not mandate comfortable prisons,” officials “must provide humane conditions of confinement.”

That includes protecting inmates from heat exhaustion, which can lead to headaches, nausea and other symptoms that Mr. Blackmon suffered. The prison said it provided relief to inmates as the appeals court required in a 2004 case: iced water, extra showers and fans. But often the prisoners did not have enough iced water, shower time or working fans.

A federal trial court rejected Mr. Blackmon’s lawsuit, saying there was no proof the heat in the prison caused health risks to anyone. The appeals court, however, found that there was a lot of proof that Mr. Blackmon’s health was severely affected. He certainly deserves the chance to convince a jury.

Eugene Blackmon, Former Inmate Claiming Texas Prison Was Too Hot, Can Sue State

Michael McLaughlin

A former inmate claiming a Texas prison reached dangerously high temperatures without relief may sue the state, a federal judge ruled on Monday.

At its worst, the heat index inside the South Texas prison that held Eugene Blackmon soared to as high as 130 degrees, according to court documents.

The then-64-year-old inmate with hypertension contends that for much of the spring, summer and autumn of 2008, the prison was as hot inside as the air outdoors, bringing on bouts of headaches, nausea, blurred visions and other precursor symptoms of heat stroke.

“We lived in that torture for month after month,” Blackmon told The Huffington Post. “You’ll never be right after you live in heat like that.”

Eugene Blackmon with Granddaughter

Windows were sealed inside the Garza East Unit’s dormitory and there was no air-conditioning, although documents show there was an industrial fan. Blackmon, who was incarcerated there for 16 months on a parole violation, alleged that inmates drank from dirty sinks to stay hydrated.

“Sometimes it was so hot in there we had to sit in our shorts all day and put wet towels on us,” Blackmon said, adding that Wardens paid little attention to his complaints about the heat.

Blackmon was later transferred to a different facility to finish his three-year sentence.

The U.S. Fifth Circuit Court of Appeals found that there was evidence “sufficient to allow a jury to conclude that [prison officials] were deliberately indifferent to significant risk to Blackmon’s health.”

By stating that exposure to extreme heat possibly violates the Eighth Amendment’s protection against cruel and unusual punishment, the appeals court reversed a lower court decision which had dismissed the suit in February.

Prison officials did not keep measurements of the temperature inside the lockup, but a Tulane University professor used National Oceanic and Atmospheric Association (NOAA) records to calculate the temperature and heat index, which factors in humidity to determine how hot it actually feels. Professor James Balsamo concluded that in the period between July 1 and Sept. 15 the heat index was 103 degrees or higher every day. On 11 of those days, the prison was so hot that NOAA would classify the situation as one of “extreme danger.”

The unrelenting heat often sent Blackmon to the infirmary. Although he claimed his already high blood pressure spiked, the lower court noted that medical records from the summer of 2008 didn’t show “any significant increase.”

The pressure is on the Texas Department of Criminal Justice (TDCJ) from other inmates and their families. During last summer’s heat, ten inmates around the state died from heat-related causes, The New York Times reported. The widow and daughter of one of the deceased inmates, Larry Gene McCollum, accused the state of causing his death after he had a seizure in an overheated jail outside Dallas.

The TDCJ maintains that it takes many steps to maintain a safe environment throughout its network of 111 prisons when the mercury rises. Officials allow extra showers, turn on fans and blowers and relax the dress code to permit inmates to wear shorts, a department spokesman told HuffPost in an email.

“While I can not specifically comment on the pending litigation, the agency strives to mitigate the impact of temperature extremes on offenders and staff,” TDCJ spokesman Jason Clark said. “We are committed to making sure all are safe not only during the summer months but throughout the year.”

Yet conditions were so sweltering that when Blackmon brought the complaint in 2008, he said he believed his jailers had actually turned on heaters in order to torment inmates.

In addition to asking for compensation, Blackmon is suing to force prison officials to install proper ventilation and provide inmates with access to cold water. The case will be heard by a jury.

“The Constitution doesn’t require [prison] to be comfortable, but it requires it to be safe and humane,” said Scott Medlock, Blackmon’s attorney and director of the Texas Civil Rights Project. “You just can’t put people in temperatures that high. He’s frankly lucky that nothing worse happened to him.”

Appellate Lawyer of the Week:
Long, Hot Summer

By John Council

As a young lawyer hungry for trial experience, DLA Piper associate Vasu Behara of Austin jumped at the chance to represent a former Texas prisoner pro bono in a federal civil-rights suit that was set for trial two years ago.

The litigation brought attention to what Behara says is a serious Eighth Amendment issue inside the Texas prison system: the effect the summer heat has on inmates whose prison units are not air conditioned.

Vasu Behara
of DLA Piper

In Blackmon v. Garza, et al., a July 30 per curiam opinion, the 5th U.S. Circuit Court of Appeals decided the trial court should not have dismissed Behara’s client’s suit on a directed verdict.

According to the opinion, former Texas inmate Eugene Blackmon sued two prison officials, Exiquio Garza and Diana Kukua, in the Southern District of Texas alleging they violated his Eighth Amendment rights to be free from cruel and unusual punishment. He claimed they did not take constitutionally adequate measures to address the high temperatures in his prison dormitory during the summer of 2008, exposing him to substantial health risks. He was in his mid-60s and suffered from high blood pressure at the time.

During trial, the judge granted a directed verdict, concluding that Blackmon did not meet his burden of proof by demonstrating that the defendants were “deliberately indifferent to a substantial risk of harm to Blackmon.” Blackmon appealed to the 5th Circuit, which reversed and remanded the case to the trial court.

The appeals court ruled that the evidence Blackmon presented at trial was sufficient; it included expert testimony about a heat index of 130 that summer in the Beeville prison and indicated that “when conditions in Blackmon’s dorm were in the extreme danger range, the risk of heat stroke was imminent.”

Behara is pleased with the 5th Circuit’s decision and the fact that he was able to be involved in the case from the trial to the appellate court.

“The trial experience was great,” Behara says. “And I got to do a majority of the briefing and got to argue the appeal. . . . We were glad to do it, and we’re very invested in the case,” says Behara, noting how difficult it is for prisoners to get their civil-rights claims heard. “And I’m from South Texas, too. I know what the heat’s like.

“The Texas Civil Rights Project would like to thank Vasu Behara, Andrew Zollinger, and Alice Lineberry of DLA Piper. Mr. Behara, who also serves on the TCRP Board of Councilors, represented Blackmon at trial, and argued the case on appeal pro bono. Sean Flammer of Scott, Douglass & McConnico wrote an amicus brief pro bono supporting Blackmon on behalf of Texas Citizens United for the Rehabilitation of Errants, Texas Inmate Families Association, Texas Jail Project, Prisoners’ Legal Services of New York, and Florida Justice Institute, Inc.” — See the press release at TCRP Blog

Tom Kelley, a spokesman for the Texas Office of the Attorney General, declines comment, referring questions to the Texas Department of Criminal Justice. Assistant AG Nadine Phillpotts, who represented the defendants on appeal, declines comment.

Jason Clark, a spokesman for TDCJ, declines comment except to say “the agency strives to mitigate the impact of temperature extremes on offenders and staff. We are committed to make sure that all are safe, not only during the summer months, but also throughout the year.”

Scott Medlock, director of the Prisoner’s Rights Program for the Texas Civil Rights Project who also represented Blackmon, says working with Behara was “fantastic.” He notes that Behara brought the vast resources of a megafirm with him, including paralegals and trial-presentation materials that aren’t readily available to a nonprofit.

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